Fear-Mongering from the Bench: Scalia & Alito Disgrace Themselves in 'Brown V. Plata'

By Young, Malcolm C. | Commonweal, July 15, 2011 | Go to article overview

Fear-Mongering from the Bench: Scalia & Alito Disgrace Themselves in 'Brown V. Plata'


Young, Malcolm C., Commonweal


Few recent U.S. Supreme Court decisions have been more vigorously contested, or hold more ominous implication, than Brown v. Plata, announced in May. In it the Court affirmed a ruling requiring California to release prisoners in order to reduce overcrowding in its prison system.

First, some background. Beginning in the 1980s, California politicians enacted some of the most punitive mandatory sentencing laws and stringent parole policies in the nation. As a result, the prison population rose by nearly 700 percent, from less than twenty-five thousand to more than one hundred seventy-two thousand, with prisons operating so far above maximum capacity that in 2006 Governor Arnold Schwarzenegger declared a state of emergency, calling for "immediate action ... to prevent death and harm caused by California's severe prison overcrowding." Plaintiffs in two cases, eventually combined in Brown v. Plata, charged that such overcrowding prevented the state from providing constitutionally adequate medical and mental-health treatment. Lower courts agreed, and beginning in 1995 ordered California to rectify the situation. When the state repeatedly failed to do so, a three-judge panel ordered the state to reduce its prison population by releasing up to forty-six thousand inmates.

By a 5-4 vote, the U. S. Supreme Court affirmed that decision. Writing for the majority, Justice Anthony Kennedy--once again the swing vote determining which wing of the Court would prevail, liberal or conservative--noted that overcrowding had caused prisoners to be "crammed into spaces neither designed nor intended to house inmates," and that "as many as fifty-four prisoners may share a single toilet." Such conditions, the Court's decision held, violate the Eighth Amendment's ban on cruel and unusual punishment.

Liberals in California and elsewhere have hailed the ruling as a vindication of the notion that our corrections system must conform to basic standards of human rights. And indeed, the record in the case revealed clear evidence of constitutionally deficient medical care. Nurses conducted triage exams in converted broom closets and filthy spaces dank with the overflow from a clogged shower drain. Suicidal prisoners were jammed for hours, untreated, into metal cages the size of a phone booth. These hellish prisons were the fault of irresponsible legislators--legislators who chose to ignore the warnings of at least a dozen official reports over two decades--and the Supreme Court acted correctly in requiring California to correct such conditions.

The ruling should have been a slam dunk, given the repeated findings of atrocious conditions, the repeated failure of state defendants to provide remedies, and the consensus among national experts that the prison population had to be reduced--and could be reduced safely. The testifying experts, many previously hired by the state to produce commission reports, included five former or current heads of state departments of corrections. Of those, four had never before testified for prisoner plaintiffs--but came forward, as one stated, because "the prisons aren't safe," and "nobody seems to be willing to step up to the plate and fix the problem." This was the record on which Justice Kennedy based the majority opinion.

Yet the narrow, 5-4 ruling was in fact anything but a slam dunk; and while those of us who agree with the majority may have won a battle, the war remains very much in question. Especially when you survey the weapons the other side deployed. In a troubling display of injudicious rhetoric, dissenting Supreme Court Justices Antonin Scalia and Samuel Alito used scare tactics to describe, in frankly demagogic terms, the potential effects of the majority decision in Brown v. Plata. In separate dissenting opinions, Scalia and Alito took potshots at the lower court's ruling and at their colleagues' majority opinion. Scalia faulted the lower court's order as too broad a remedy, asserting sarcastically that "the vast majority of inmates most generously rewarded by the release order . …

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